Quashed

Abdul Gafoor v. State of Kerala

Kerala HC9 Mar 2016WP(C)/2484/2016

Case brief

AI extract

What is this about?

High Court of Kerala single judge quashed building tax notices and appeal orders due to failure to consider separate ownership of apartments in the building. Court directed assessing authority to re-evaluate the property as separate units based on ownership documents. Petitioners required to prove vested ownership of different portions within a month.

What did the court decide?

Exts.P5, P6, P9, and P10 orders quashed; petitioner directed to establish separate ownership before 4th Respondent by 28.03.2016; fresh orders within one month.

Abdul Gafoor Vs State of Kerala — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937

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WP(C).No. 2484 of 2016 (I)

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PETITIONER(S):

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1. ABDUL GAFOOR, S/O.ABDUL RAHMAN, 'ULLAS', PERUNNA P.O., CHANGANACHERRY, KOTTAYAM, PIN - 686 102.

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2. JAMEELA BEEVI, W/O.ABDUL GAFOOR, 'ULLAS', PERUNNA P.O., CHANGANACHERRY, KOTTAYAM, PIN - 686 102.

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BY ADVS.SRI.S.RANJIT (KOTTAYAM), SRI.GOKUL DAS V.V.H.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2. DISTRICT COLLECTOR, COLLECTORATE P.O., KOTTAYAM, PIN - 686 002.

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3. REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM, PIN - 686 001.

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4. TAHSILDAR, TALUK OFFICE, CHANGANACHERRY, KOTTAYAM, PIN - 686 102.

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5. VILLAGE OFFICER, CHANGANACHERRY, KOTTAYAM, PIN - 686 102.

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6. CHANGANACHERRY MUNICIPALITY, REPRESENTED BY ITS SECRETARY, CHANGANACHERRY, PIN - 686 102.

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WP(C).No. 2484 of 2016 (I)

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7. NIYAS. A., S/O.ABDUL GAFOOR, 'ULLAS', PERUNNA P.O., CHANGANACHERRY, KOTTAYAM, PIN - 686 102.

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R1 TO R5 BY GOVT. PLEADER SMT.LILLY K.T.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 2484 of 2016 (I)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P-1:	TRUE COPIES OF THE BASIC TAX RECEIPTS (2 NOS.) DATED 20.03.2014 ISSUED TO THE PETITIONERS.
EXT.P-2:	TRUE COPY OF THE BUILDING PERMIT DATED 05.06.2010 BEARING NUMBER BA/75/10-11 ISSUED BY THE 6TH RESPONDENT MUNICIPALITY.
EXT.P-3:	TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 10.04.2012 JOINTLY ISSUED BY THE 6TH RESPONDENT MUNICIPALITY TO THE PETITIONERS AND THE 7TH RESPONDENT.
EXT.P-4:	TRUE COPY OF THE APPROVED PLAN PERTAINING TO THREE STORIES BUILDING NOS.352(1), 352(2) & 352(3) CONSTRUCTED ON THE PROPERTY OF THE PETITIONERS.
EXT.P-5:	TRUE COPY OF THE NOTICE DATED 18.06.2013 BEARING NUMBER E4/E8.1905/13 ISSUED BY THE 4TH RESPONDENT DEMANDING BUILDING TAX.
EXT.P-6:	TRUE COPY OF THE NOTICE DATED 18.06.2013 BEARING NUMBER E4/E8.1905/13 ISSUED BY THE 4TH RESPONDENT DEMANDING LUXURY TAX.
EXT.P-7:	TRUE COPY OF THE RECEIPT DATED 26.06.2013 ISSUED FOR PAYING ONE INSTALLMENT OF BUILDING TAX UNDER PROTEST.
EXT.P-8:	TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE THE 3RD RESPONDENT.
EXT.P-9:	TRUE COPY OF THE ORDER DATED 31.10.2014 BEARING NUMBER D-916/2014 ISSUED BY THE 3RD RESPONDENT.
EXT.P-10:	TRUE COPY OF THE DEMAND NOTICE DATED 18.12.2015 FOR ADVANCE PAYMENT OF LUXURY TAX FOR THE YEAR 2016 - 17 ISSUED BY THE 5TH RESPONDENT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.2484 of 2016

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............................................................. Dated this the 9^th day of March, 2016

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J U D G M E N T

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The challenge in the writ petition is against Exts.P5 and P6 notice of demand and assessment order respectively, as also Ext.P9 order of the appellate authority that dismisses the appeal preferred by the petitioner against the assessment under the Building Tax Act on the ground of delay. The grievance of the petitioner in the writ petition is essentially that, before passing Exts.P5 and P6 orders in respect of building tax and luxury tax, the 4^th respondent assessing authority did not take note of the fact that the building in question comprised of separate flats which belonged to different persons, and therefore, the assessment had to be as separate units and not as a single unit. It is stated that the assessment orders were passed without considering any of the relevant aspects and the assessment was done mechanically by assessing the building as a single unit.

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I have heard the learned counsel appearing on behalf of

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W.P.(C). No.2484 of 2016

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the petitioner as also the learned Government Pleader for the respondents.

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On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from Exts.P5 and P6 orders and notice of demand that the assessment in relation to the building of the petitioner does not indicate as to whether the assessing authority had considered the contentions of the petitioner with regard to separate ownership of the individual apartments in the building. The learned counsel for the petitioner would refer to various documents produced in the writ petition to suggest that different portions of the building belonged to different persons, and there were separate electricity connections as also separate door numbers issued to the different persons which indicated that the different units belong to different person and not the same person for the purposes of assessment under the Building Tax Act. In my view, this is an aspect that will have to be considered by the assessing authority while competing the assessment in relation to the building owned by the petitioner both for the purposes of levy of building tax as also the luxury tax. Accordingly, I quash Exts.P5, P6, P9 and P10 orders and direct

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-3-

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W.P.(C). No.2484 of 2016

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the 4^th respondent assessing authority to consider the matter afresh in the light of the material produced by the petitioner. To enable the 4^th respondent to do so, I direct the petitioner to appear before the 4^th respondent at his office at 11 am on 28.03.2016 together with all connected documents to establish his contention that the ownership of different portions in the building vested in different persons. The 4^th respondent shall pass fresh orders as directed, after adverting to the documents and materials produced by the petitioner, within a month thereafter.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns/9.3.16

Abdul Gafoor v. State of Kerala

Case brief

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Abdul Gafoor v. State of Kerala

Case brief

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